The Copyright Conundrum and the Need for Open Access

Posted onOctober 21, 2013This page was generated by the Oviatt Library|Comments Off

I. Intro: Until the Elephant Vanishes

“Yeah, yeah, yeah / There’s a hole in my life.” – The Police

To mark the 6th Annual Open Access Week (cf. OA FAQs) I would like to discuss the very large elephant in the room: copyright. It’s everywhere and impacts almost everything we do. Everyone, from authors to users to publishers, has got a stake in copyright, too, yet few people will agree on whether it, in its current incarnation (70 years + life of an author), is entirely positive or negative.

Copyright has long been touted as the sine-qua-non incentive for authors, artists, musicians and scholars to create new and lasting cultural materials. Without its protections, the reasoning goes, authors will not be inspired to create new things and culture will diminish as a result. This de facto monopolization of creative works — potentially lasting for more than a century — is further justified by publishers as necessary for their artists to make a living, even as the very same businesses tout the tenets of free markets, competition and Draconian cost-cutting measures.

Such is the copyright conundrum until the law changes.

II. The Hoarding of Dragons: Denying our Own Culture to Ourselves

So what happens when copyright protection becomes too long or too restrictive? What happens when the public domain (i.e. works that all can use freely) is purposefully shrunk? What happens when publishers and corporations – by far the largest owners of copyright – sit on works like dragons hoarding treasure?

What happens when we cannot access our own culture?

The clearest answer can be seen in the following graph, taken from a study conducted by Paul Heald at the University of Illinois Urbana-Champaign. This chart shows how publishers and copyright owners are not, contrary to their reasoning, fostering culture and creativity, but are instead stifling it:

New editions of previously printed books are but a small aspect of creative culture, this is true. However, the implication of this study is that publishers are less likely to be publishing new versions of out-of-print books between the 1920s and 1990s (a period of 70-80 years) unless it is financially viable. There are currently more new books available of works originally published in the 1910s than there are in the 2000s, and just as many books in the decade of the 1910s as there are from the 20s through the 80s. As some have suggested, the 20th Century has fallen into a black hole.

While it is understood that publishers are businesses and must act in ways that ensure a healthy bottom-line, it has also been a tendency of publishers to stifle the publication of works that might actually be valuable to smaller, though less-profitable, audiences. Furthermore, if after 10 years 50% of copyrighted works have no market value (after 43 years it’s 90%; 65 years it’s 99%), leaving their rights in the hands of publishers to reprint them based on market forces is a sure recipe for letting them sit untouched.

The growing hole in our accessible culture, as evidenced above, subsequently puts more pressure on the institutions that exist to help preserve such materials for the sake of creating new knowledge: i.e. the non-profit universities, libraries, archives, historical societies, et al. If publishers are unwilling to reprint older editions of works due to the risk of copyright infringement, memory institutions like ours are forced to spend more time, effort and money on ensuring that they remain accessible to all.

III. The digitization, democratization (& monetization) of culture

The next logical step to ensure access and preservation has been to digitize these works and, when permitted, place them online. The added value of the digitization process allows more people to access more information than ever before. It has the potential to level the playing field for those with disabilities or poor access to institutions of learning. People have touted this as the great democratization of information and culture. In some ways this is correct, provided that it’s available where you live and you have at least some money to afford an internet connection.

The dream of this universally accessible library with everything stored within it for all is an ancient one, spanning back to the famed library of Alexandria. Some contemporary projects such as the Internet Archive, Wikipedia, Google Books, the HathiTrust, Public Library of Science, Library of Congress are attempting to realize these ambitions. But the dream is not attainable.

Publishers have dominated this digital content with the creation of online journal databases since the 1980s and 1990s. The monetization of past content in these online journals — much of it scholarly in nature & most of it transferred in terms of copyright to the publishers — has served to close off complete accessibility to all but the richest of organizations. Libraries usually provide this content to their users at no cost and so the actual expense of these resources usually remains invisible to their users. But as recently as 2012, Harvard university, one of the richest universities in the world with an endowment of approximately $30 billion, has expressed concern that current price gouging of database aggregators is “fiscally unsustainable”.

If Harvard’s hurting, we’re all hurting.

IV. The United Colors of Open Access & “No Whammies, please!”

One of the proposed solutions to this growing amount of inaccessible content is the open access movement. Open access comes in many colors, including Gold (Journals that fund publishing via Article Processing Charges [APCs] to authors), Green (usually institutional repositories holding pre-prints or post-prints of research), and the lesser-known Platinum (benefactor or organization pays APCs).

Open access allows users to access content in perpetuity without having to worry about whether the works can or can’t be used. Copyright restrictions still will generally apply (i.e. you can’t wholesale copy and paste the work and then try to resell it), but for the sake of academic disciplines, scholars allow their work to be read and re-used. This increases the likelihood of their being cited, and further increases their impact factor.

Overall, open access has the ability to improve scholarly communication, but from an economic point of view access is not profitable for publishing companies. Publishers, acting as the middle-men in this case, want to restrict access as a way to increase revenues. Generally, this is a reasonable economic approach. In the face of demand, restricting supplies can help to increase prices and profitability.

However, in the case of publicly funded research it becomes absurd. Publicly-funded institutions are essentially providing the space and resources for research only to be forced to buy such research back when the results are published. A “double whammy”, so to speak.

Some may say that these institutions can afford it or that the publishers provide the types of services (i.e. editing, formatting and peer-review procedures) other cannot, but this misses the point. What we have is essentially a publishing industry subsidized by the public. As for providing peer-reviewing procedures (one of the publishing industry’s main justifications for their practices), it should be remembered that publishers also do not pay peer-reviewers.

OA is seen as the best antidote to these unfair practices.

V. CSUN’s place in the Open Access Movement – Internationally, Regionally and Locally

CSUN is part of the growing OA movement in several ways. First, internationally, due to President Harrison, CSUN is now a signatory of the Berlin Declaration on Open Access, an international agreement now entering its 10th year implemented by the Max Planck Society.

AB 609 would allow Californians access to the scholarship that has been locked away in databases behind expensive pay walls. No longer would we be denied access to our own culture that was funded by us in the first place.

Finally, CSUN’s Faculty Senate will be voting on a campus-wide resolution calling for CSUN faculty to publish their work in open access venues, or archiving such work in CSUN ScholarWorks. As for ScholarWorks, it has doubled in size in ten months. It will double in size again by June 2014 to 6000, making it one of the more sizable repositories within the United States. When we reach 10,000 items we will likely be one of the top 50 or 60 institutional repositories in the US, as tracked by the Registry of Open Access Repositories (ROAR). For now ScholarWorks will continue to grow and help the cause of open access for the foreseeable future.

VI. Conclusion: Atlas shrugs or shrugging Atlas?

It remains to be seen if works from the 20th century will become more accessible again in our lifetime. As long as libraries exist and do not discard books that are out of print, our works can be recovered and preserved. Google Books and the HathiTrust Massive Digital Libraries (MDLs) are still digitizing copyrighted works, including contested orphan works. Perhaps these initiatives will help to alleviate some of the problems associated with the hole in our culture, provided that the publishers are cooperative. However, the tendency of the Author’s Guild to litigate in the cases against both Google and the HathiTrust suggests otherwise.

Yet, new content is necessarily based on old findings. Innovation does not arrive without a reliance on past models. As Newton famously stated, “If I have seen further it is by standing on the shoulders of giants.” Unfortunately, given the current copyright situation, it is the giants who are standing on our shoulders.